Exploitative Contracts

Rick Bigwood

The highest courts are increasingly being asked to address normative concepts such as 'exploitation', 'duress', 'undue influence', which are explored philosophically in this book

Uniquely, the book examines the concept of 'exploitation' itself

Exploitative Contracts

Rick Bigwood

Description

Judges and scholars routinely use concepts such as 'exploitation' in a justificatory way. In the field of contract law, a finding of exploitation may excuse a party from the normal consequences of his or her manifested contractual assent. However, the meaning of exploitation is usually assumed for this purpose, rather than elaborated. In fact, exploitation is a highly contested concept.

Exploitative Contracts examines the 'essentially contestable' criteria of interpersonal exploitation claims. It puts forward a conception of exploitation: 'legal contractual exploitation', a form of wrongdoing that arises in connection with the formation of contracts. This notion is shown to underpin traditional heads of relief in contract law, including unconscionable
dealing, undue influence, unilateral mistake in equity, and 'lawful act' duress.

Importantly, this notion of legal contractual exploitation conforms to the intellectual and institutional forms of order presupposed by the classic liberal conception of the contract. The wrongfulness of an act of exploitation must reside in some characteristic of the processes of contract formation rather than in some quality of the impugned contract itself.

The doctrines of unconscionable dealing, duress, and undue influence are examined in detail in the light of what they each reveal about the 'process' conception of legal contractual exploitation. In turn, the volume explains how an understanding of these contract law doctrines can be enhanced by a proper conception of
exploitation.

Exploitative Contracts

Rick Bigwood

Table of Contents

1. Introduction and Overview: The Complex Normativity of Exploitation2. 'Why should you expect the ethics of the game to be different from the game itself?': Operational Ethics and Contract Bargaining3. Contract and Justice: From Involuntariness to Exploitation4. Legal Contractual Exploitation5. Towards a Purely Processual Conception of Legal Contractual Exploitation6. Exploitation of Special Disadvantage: Unconscionable Dealing7. Contracting under Duress8. Exploitation of Deferential Trust: Relational Undue Influence9. ConclusionBiblography

Exploitative Contracts

Rick Bigwood

Author Information

Rick Bigwood joined the Faculty of Law at The University of Auckland in 1995. His main teaching responsibilities cover contract law and the law of personal property. Previously, he was a senior solicitor with the Federal Attorney-General's Department in Canberra, Australia. He has been General Editor of the New Zealand Universities Law Review and is currently Co-editor of the New Zealand Law Review.